Source: Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume II, London, HMSO, 1947
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THE BELSEN TRIAL
BRITISH MILITARY COURT, LUNEBURG,
Killing and ill-treatment of Allied military personnel and civilians in Belsen and Auschwitz concentration camps treated as a war crime punishable on the individual. Scope of Regulation 8 (ii) of the British Royal Warrant, Army Order 81/1945, relating to joint responsibility. Liability, of civilian Allied nationals alleged to have identified them selves with the German S.S. in charge of the camps. Admissibility of evidence of offences committed outside the two camps. The defences of superior orders, of the alleged supremacy of Municipal over International Law and of necessity. Types of evidence admissible under Regulation 8 (i) of the Royal Warrant.
Josef Kramer and forty-four others were alleged to have been either full members of the staff of Belsen or Auschwitz concentration camps, or of both, or prisoners elevated by the camp administrators to positions of authority over the other internees. They were accused in the first place of having committed individually murders and other offences against the camp inmates, and in the second place of having all knowingly participated in a common plan to operate a system of ill-treatment and murder in these camps. Applications by the Defence first that the Auschwitz and the Belsen charges should form the subject of separate trials, and secondly that various individual accused should be tried separately, were rejected by the Court. The evidence for the Prosecution was notable for the unusually large amount of documentary testimony which it included, but a number of witnesses also appeared in the witness box for both the Prosecution and the Defence. On behalf of all the accused it was argued that offences committed in concentration camps, even against prisoners of war, were not war crimes ; that the offences alleged did not fall within the limited categories of war crimes which
could be committed by civilians ; that the victims were not always Allied nationals ; that the concentration camp system was legal in German law, which was. the system to which the accused owed their primary allegiance ; that under German law many of the victims had become German subjects through the annexation of parts of Poland and Czechoslovakia ; that it was incorrect to regard International Law as being dynamic in a sense which would allow a reversal of one of its principles ; that the British Royal Warrant, Army Order 8 l/1945 as amended, did not set out to alter substantive International Law ; that in general the State and not the individual was legally responsible for breaches of International Law ; that the pre-April, 1944, text of paragraph 443 of the British Manual of Military Law (itself not a binding authority) was correct in law ; and that it would be wrong to apply an amendment to that text made after the commission of many of the offences alleged. Counsel for individual accused argued that the affidavit evidence and much of the oral evidence before the Court was unreliable ; that conditions or certain events in the camps were outside the control of the accused ; that no prior agreement sufficient to make them jointly responsible under Regulation 8 (ii) of the Royal Warrant had been shown ; that Regulation 8 (ii) could not be interpreted so as to make an accused liable for the acts of a superior or for offences of others more serious than those proved against the accused ; that a certain degree of violence was necessary to keep order and to preserve food supplies ; that the accused were protected even by the amended text of paragraph 443 regarding superior orders ; that it had not been proved that any of the persons named in the charge sheets as killed actually died at the hands of the accused ; and that the Polish accused could not be regarded as war criminals.
The Prosecutor argued that all the victims were protected by provisions of conventional International Law ; that the offences alleged were war crimes because the accused were members of the German armed forces and the charge alleged the ill-treatment of Allied nationals during time of war, and because the concentration camp system was in any case intended to further the German war effort; that it was recognised that war criminals could be made individually responsible for their offences ; that Germany could not legally annex territory till after the war and had in the main not actually attempted to do so ; that it was..
not necessary on a charge of murder to prove the murder of named persons ; that most of the offences were committed against superior orders, and the gas chambers offences, the only exception, were not committed without a knowledge that they were wrongful ; that the offences were not legal under German law ; that the amended version of paragraph 443 was in conformity with the best legal opinion ; that proof of agreement, sufficient to satisfy Regulation 8 (ii), could be made by inference from criminal actions ; and that the Polish accused must be regarded in the same light as the ex-enemy accused since they had by their acts identified themselves with the S.S. authorities. One accused, Gura, fell ill during the trial, and proceedings against him were set aside for later action. The Court, after deleting certain parts of the charge, found thirty of the accused guilty and pronounced sentences varying from the death penalty to one years imprisonment. The sentences were confirmed by higher military authority.
The Court consisted of Major-General H. P. M. Berney-Ficklin, C.B., M.C., as President, and, as members, Brig. A. de L. Cazenove, C.B.E., D.S.O., M.V.O., Col. G. W. Richards, C.B.E., D.S.O., M.C. (Royal Tank Regiment), Lt-Col. R. B. Morrish, T.D. (Royal Artillery), and Lt.-Col. R. McLay (Royal Artillery). Lt.-Col. J. W. L. Corbyn, M.C. (Wiltshire Regiment), was waiting member.
The Judge Advocate was C. L. Stirling, Esq., C.B.E., Barrister-at-Law.
The Prosecutor was Col. T. M. Backhouse, T.D., of the Legal Staff, Headquarters, British Army of the Rhine, assisted by Major H. G. Murton-Neale, R.A.
A number of defending Counsel took part in the trial, each acting on behalf of two or more of the accused. These Counsel and the accused whom they defended were : Major Winwood (Kramer, Fritz Klein, Weingartner and Kraft), Major A. S. Munro, R.A.S.C. (Hoessler, Borman, Volkenrath and Ehlert), Major L. S. W. Cranfield, H.A.C. (Grese, Lothe, Lobauer and Klippel), Capt. D. F. Roberts, R.A. (Schmitz and Francioh), Capt. C. Brown, R.A. (Gura, Mathes, Calesson and Egersdorf), Capt. J. H. Fielden, R.A. (Pichen, Otto and Stofel), Capt. E. W. Corbally, Cameronians (Schreirer, Dorr, Barsch and Zoddel), Capt. A. H. S. Neave, Black Watch (Schlomowicz, Ida and Ilse Forster and Opitz), Capt. J. R. Phillips, R.A. (Charlotte Klein, Bothe, Walter and Haschke), Lieut. J. M. Boyd, R.A. (Fiest, Sauer and Lisiewitz), Capt. D. E. Munro, Gordon Highlanders (Roth, Hempel and Hahnel), Lieut. A. Jedrzejowicz, Polish Armoured Division (Starotska, Polanski, Kopper, Ostrowski, Burgraf and Aurdzieg),
Colonel H. A. Smith, at that time Professor of International Law at London University, delivered a closing speech as Counsel for the defendants as a whole.
The accused were : Joseph Kramer, Dr. Fritz Klein, Peter Weingartner, Georg Kraft, Franz Hoessler, Juana Borman, Elizabeth Volkenrath, Herta Ehlert, Irma Grese, Ilse Lothe, Hilde Lobauer, Josef Klippel, Oscar Schmitz, Karl Francioh, Fritz Mathes, Otto Calesson, Medislaw Burgraf, Karl Egersdorf, Anchor Pichen, Walter Otto, Franz Stofel, Heinrich Schreirer, Wilhelm Dorr, Eric Barsch, Erich Zoddel, Ignatz Schlomowicz, Vladislav Ostrowski, Antoni Aurdzieg, Ilse Forster, Ida Forster, Klara Opitz, Charlotte Klein, Herta Bothe, Frieda Waiter, Irene Haschke, Gertrud Fiest, Gertrud Sauer, Hilda Lisiewitz, Johanne Roth, Anna Hempel, Hildegard Hahnel, Helena Kopper, Antoni Polanski, Stanislawa Starotska and Ladislaw Gura.
All except Starotska were charged with having committed a war crime, in that they " at Bergen-Belsen, Germany, between 1st October 1942 and 30th April 1945 when members of the staff of Bergen-Belsen Concentration Camp responsible for the well-being of the persons interned there, in violation of the laws and usages of war were together concerned as parties to the ill-treatment of certain of such persons causing the deaths of Keith Meyer (a British national), Anna Kis, Sara Kohn (both Hungarian nationals), Hejmech Glinovjechy and Maria Konatkevicz (both Polish nationals), and Marcel Freson de Montigny (a French national), Maurice Van Eijnsbergen (a Dutch national), Jan Markowski and Georgej Ferenz (both Polish nationals), Maurice Van Mevlenaar (a Belgian national), Salvatore Verdura (an. Italian national), and Therese Klee (a British national of Honduras), Allied nationals and other Allied nationals whose names are unknown and physical suffering to other persons interned there, Allied nationals and particularly Harold Osmund le Druillenec (a British national), Benec Zuchermann, a female internee named Korperova, a female internee named Hoffman, Luba Rormann, Ida Frydman (all Polish nationals) and Alexandra Siwidowa, a Russian national and other Allied nationals whose names are unknown."
Starotska, Kramer, Dr. Klein, Weingartner, Kraft, Hoessler, Borman, Volkenrath, Ehlert, Gura, Grese, Lothe, Lobauer and Schreirer were charged with having committed a war crime in that they " at Auschwitz, Poland, between 1st October 1942 and 30th April 1945 when members of the staff of Auschwitz Concentration Camp responsible for the well-being of persons interned there in violation of the law and usages of war were together concerned as parties to the ill-treatment of certain such persons causing the deaths of Rachella Silberstein (a Polish national), Allied nationals and other Allied nationals whose names are unknown and physical suffering to other persons interned there, Allied nationals, and particularly to Ewa Gryka and Hanka Rosenwayg (both Polish nationals) and other Allied nationals whose names are unknown."
All the accused pleaded not guilty to the charges made against them.
On the first day of the trial the Defence submitted that the joinder of the two charges was bad, and that they should be heard separately, preferably by different courts.
The spokesman for the Defending Officers submitted that this application to sever the Belsen charge from the Auschwitz charge was not an application for separate trial for each accused and was therefore unaffected by the Regulation made under the second Royal Warrant.
In respect of Belsen and Auschwitz there were two entirely different charges and there was no justification in joining them, because between Belsen and Auschwitz there was no connection ; they had only this in common, that they were both concentration camps. The accused who were only in one of the camps could not be said to have formed part of a unit or group or to have taken part in any concerted action when in fact they were never in the other camp. In the opinion of the Defence, Regulation 8, according to which no application by any of the accused to be tried separately was to be allowed, was not relevant.
Furthermore, Rule of Procedure 16 (Footnote 2: Regarding the Rules of Procedure in general, see pp. 129-130.) which provided for joint trials read as follows, in so far as it was material : " Any number of accused persons may be charged jointly and tried together for an offence alleged to have been committed by them collectively. Where so charged any one or more of such persons may at the same time be charged and tried for any other offence alleged to have been committed by him or them individually or collectively, provided that all the said offences are founded on the same facts, or form or are part of a series of offences of the same or a similar character." Counsel submitted that there was between the two charges nothing in the nature of a series ; all they had in common was a very slight surface similarity in that they were both concentration camps administered by Germans.
On behalf of those accused who appeared on both charge sheets, Counsel pointed out that Rule of Procedure 108 included the words : " No formal charge sheet shall be necessary, but the convening officer may nevertheless direct a separate trial of two or more charges preferred against an accused ; or the accused, before pleading, may apply to be tried separately on any one or more of such charges on the ground that he will be embarrassed in his defence if not so tried separately, and the Court shall accede to his application unless they think it to be unreasonable." Counsel submitted that persons accused mainly of offences committed at Belsen would be
prejudiced by the fact that at least half of the evidence related to Auschwitz particularly since the latter evidence would include that concerning gas chambers.
The Prosecutor said that he disagreed, not on the law but on the facts. The charges were identical, word for word ; the only difference was in the victims, and in many cases there was even no difference in the victims. The allegation of the Prosecution was that these two cases were a continuation of a series, in so far as the persons who were first at Auschwitz were concerned. With the exception of Starotska all of the Belsen accused came from Auschwitz to Belsen. First of all at Auschwitz they ill-treated a body of persons and then went to Belsen where they continued with the ill-treatment. One offence was precisely the same as the other. The individual methods of ill-treatment sometimes varied because every known method of ill-treatment was used at one or the other of these camps. Of course, the accused found at Belsen a lot of new people, but all the witnesses with regard to Auschwitz were found at Belsen. The Prosecutor said that if the Court decided to separate the two charges, he would apply to give the evidence in respect of Auschwitz on the Belsen charge. Some of the accused had said of Belsen : " We realise that conditions here were appalling but we could not help it." The Prosecutor said that he would therefore ask, if necessary, to give evidence that the conditions which these same people created somewhere else were equally appalling and that they merely carried on with a series of similar offences.
With regard to the question of the joint trial of individual persons, the Prosecutor made it quite clear that the Prosecution would allege a joint and collective offence by a group of people. Individual atrocities committed by individual persons were put forward to show that they were taking part in and acquiescing in the system which a group were carrying on. They were a unit acting in common, under a commanding officer, Kramer, who was the Kommandant of that camp. All the accused were either members of his staff or internees who had been given authority by him. They were definitely a group or unit within the sense of the Regulation. The Prosecutor agreed that this last argument applied to the question of separate trials for each accused, not to the question of splitting the charges, already dealt with.
After hearing these arguments, the Court overruled the application for the severing of the two charges.
The Defence put forward a further application that several of the accused should be tried separately. They maintained that there was no evidence that the crime had been the result of concerted action ; therefore the provision introduced by the second Royal Warrant, barring applications for separate trial, did not apply. Various Defence Counsel said that the defence of their particular clients would be embarrassed through the joint trial, particularly by the fact that these clients would be prevented from calling some of the other accused as witnesses in their defence, except possibly upon.
Cross-examination if these accused gave evidence on their own behalf. (Footnote 1: Footnote 3 to Rule of Procedure 16, points out that in a joint trial, " though each of the accused is a competent witness, none of the other persons charged jointly with him can compel him to give evidence." This rule is derived from English criminal law and is made applicable to war crime trials by Regulation 3 of the Royal Warrant and Section 128 of the Army Act. (See p. 129.)) As to the interpretation of the word " concert " used in Regulation 8, Counsel quoted " The Little Oxford Dictionary," according to which the word meant " to plan, to premeditate, or to contrive," all of which words clearly implied a certain amount of common intention, or common action, between various people. There was not sufficient evidence at this stage to indicate such planning. Clearly the Court could not deal with the matter fully until the case had been tried ; the provision, therefore, must mean : " Where there is evidence on the face of the matter that the war crime has been the result of concerted action." Certain of the accused, however, had only arrived in Belsen in the month of its liberation by the Allies.
The Prosecutor replied that there was contained in the depositions prima facie evidence of concerted action, the people concerned all being members of an organisation working under a joint leader and taking part in cruelties.
In connection with this application, further difficulties on a point of law arose out of the wording of the Royal Warrant. (Footnote 2: The original text, quoted above, presupposed that, " there is evidence that a war crime has been the result of concerted action." The provision added by the second Royal Warrant deals not with the result of the trial, but with a situation arising at its outset. The proper and only time to make such an application is before any evidence is called before the Court, at a time when there is no evidence, in the technical sense, a tall. On the Royal Warrant in general, see Part II, pp. 126 et seq.) There was substantial agreement between the Prosecution and the Defence that it must have been intended by the authors of the second Royal Warrant, amending Regulation 8 (ii), that the Court should look at the documents before it, namely, the charge sheet and the abstract, (Footnote 3: Regulation 4 of the Royal Warrant states that before trial the Commanding Officer having custody over the accused shall cause a Summary of Evidence or an abstract of evidence to be prepared as the Convening Officer may direct. See pp. 137-8) and if the Court thought that the accused came within the group or the unit, then it had no right to hear an application to sever.
The Court decided that these were cases which did fall within the Regulation 8 (ii) and that they were, therefore, bound to comply with the Regulations. That being so, they must refuse the application for separate trial.
In opening the case, the Prosecutor stated that the charges in the case alleged that, when the accused were members of the staff of one or other of the two concentration camps involved and as such were responsible for the well-being of the prisoners interned there, that they were together concerned as parties to the ill-treatment of certain of the persons interned in the camp in violation of the law and usages of war ; and that by that ill-treatment they caused the death of some of them and caused physical suffering to
others. As this was the first case of this kind to be tried the Prosecutor thought he should shortly put before the Court the grounds on which they could claim jurisdiction to try these charges. In this connection Counsel referred to Chapter XIV, Paragraph 449, of the British Manual of Military Law (Footnote 1: " Charges of war crimes may be dealt with by military courts or by such courts as the belligerent concerned may determine. In every case, however, there must be a trial before punishment, and the utmost care must be taken to confine the punishment to the actual offender.") and to the Royal Warrant Army, Order 81/1945. The acts set out in the charges were undoubtedly war crimes if proved because the persons interned in both Auschwitz and Belsen included Allied nationals. Counsel expressly pointed out that, " We are not, of course, concerned in this trial with atrocities by Germans against Germans." The Allied nationals in these camps were either prisoners of war, persons who had been deported from occupied countries or persons who had been interned in the ordinary way. They were all persons who had been placed there without trial, because of their religion, their nationality, or their refusal to work for the enemy,. or merely because they were prisoners of war who, it was thought, might conveniently be used or exterminated in such places. The laws and usages of war provided for the proper treatment not only of prisoners of war but of the civilian citizens of the countries occupied by a belligerent. So far as the inhabitants of occupied territories were concerned, the Prosecutor quoted paragraph 383 (Footnote 2: " It is the duty of the occupant to see that the lives of inhabitants are respected, that their domestic peace and honour are not disturbed, that their religious convictions are not interfered with, and generally that duress, unlawful and criminal attacks on their persons, and felonious actions as regards their property, are just as punishable as in times of peace.") and paragraph 59 (f) (Footnote 3: Clause (f) of paragraph 59, which deals with the treatment of prisoners of war, reads as follows : " Women shall be treated with all consideration due to their sex.") of chapter XIV of the British Manual and Article 46 (Footnote 4: " Family honour and rights, individual life, and private property, as well as religious convictions and worship, must be respected.") of the Hague Regulations. As to the definition of a war crime the Prosecutor referred to paragraphs 441-443 of chapter XIV of the British Manual.
The persons who according to the Prosecution suffered these wrongs came from ten different nationalities. Britain had accepted the responsibility of this trial, because it was quite impossible to form a Court and to carry on a trial if all these nationalities were in fact represented, and as Britain was the country which was controlling this zone of Germany, and which held these accused, Britain had accepted the responsibility of the trial. Observers had been invited from each of the countries who had nationals in these camps.
The Prosecutor said that he would ask the Court to say that the conditions which were found in Belsen and in Auschwitz were brought about, not only by criminal neglect, but by deliberate starvation and ill-treatment, with the malicious knowledge that they must cause death or lasting physical injury. In respect of Auschwitz, the Prosecution would ask the Court to say, in addition, that there was a deliberate killing of thousands and probably millions of people, and that each of the accused who was charged in the Auschwitz charge had his or her share in this joint endeavour, this policy of deliberate extermination.
In respect of Belsen there would not be an allegation that there was a gas chamber or that persons were herded by their thousands to their death but there would be an allegation that every member of the staff of Belsen bore his or her share in the treatment given to the prisoners at Belsen, which they knew was causing and would continue to cause death and injury. The Prosecutor would ask the Court to view the evidence as a whole and to say that each must bear his responsibility not only for the actions of his own hand, but for the actions of this criminal gang who were working together. Nevertheless, lest there should be the slightest shadow of doubt, no person had been brought before the Court against whom the Prosecution would not produce some evidence of personal acts of deliberate cruelty and in many cases of murder.